SEC Staff Views CEO/CFO Certifications as Material Non-Public Information; SEC Establishes Website for Posting Companies’ Certifications

Originally published on July 29, 2002

The SEC Staff today issued a statement expressing its view that the certifications to be submitted by the chief executive officer and chief financial officer of 947 large public companies pursuant to the SEC’s June 27, 2002 order are "nearly certain" to be viewed as containing material non-public information. Therefore, the SEC Staff recommends that:

• the statements should be handled in the same manner as all other material non-public information of the companies; and
• the best course of action would be for the companies, in addition to filing the sworn statements under the Order, to file an Item 9 or Item 5 Current Report on Form 8-K when the statements are completed and signed, disclosing the filing of the statements and attaching the statements as exhibits to the Form 8-K.

The Staff states that companies may also wish to post the certifications on their websites. If a company has already submitted its officers’ certifications to the SEC, the Staff recommends that the company file the certifications on a Form 8-K and post them on the company’s website within the next several days.

In light of the Staff’s comments, companies should consider filing their officers’ certifications under Item 9 of Form 8-K before, concurrently with or as soon as possible after the certifications are submitted to the SEC. In addition, while there are no Regulation FD concerns with discussing the certifications with reporters prior to the time that the SEC or the company makes the certifications publicly available, company personnel should be mindful of potential insider trading questions that could arise, in light of the view of the SEC Staff, if the certifications are discussed outside of a public forum prior to being filed or otherwise publicly disclosed.

The SEC Staff’s statement is available at: http://www.sec.gov/rules/extra/staff21a1.htm. Separately, the SEC established a website where the certifications will be available, in PDF format, once they are submitted to and processed by the Commission. That website is available at http://www.sec.gov/rules/extra/ceocfo.htm. Gibson Dunn lawyers are available to assist clients in addressing questions which they may have as to the certification process. Please contact the corporate securities lawyer with whom you work if you have any questions.